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Australia - Employer Update 2017

The challenges of regulating service providers and the manner in which employers engage with labour and service providers will continue to be a topic of interest and a source of heated debate in 2017. Legislative debate and policy changes are a likely outcome to address the rise of the gig economy, help equip employers with a means to flexibly engage independent workers, and other challenges to traditional models of worker engagement.

Important legislative amendments

Whistle-blower protections

The Fair Work (Registered Organisations) Amendment Bill was passed in November 2016. It is anticipated that the Bill will become operational in the very near future.

A key aspect of the Bill is to ensure stronger protections for whistle-blowers in organisations to ensure that they have access to remedies where a person takes, or threatens to take, a reprisal against them out of a belief or suspicion that they have made or may have made a disclosure of information.

A person who takes a reprisal against a whistle-blower can be pursued for civil or criminal remedies.

Re-establishment of ABCC

A Bill was passed on 30 November 2016 to re-establish the Australian Building and Construction Commission (“ABCC”).

The main purpose of the Bill is to reintroduce the ABCC as the industry regulator and abolish the current Fair Work Building Industry Inspectorate.

One of the main impacts of the new ABCC on the building industry is the introduction of the Building Code, which will be introduced in 2018.

The Building Code includes new requirements for companies’ contractual arrangements including enterprise agreements to ensure they are Code-compliant. The Code will have retrospective impact on agreements in the building industry and will likely result in industrial unrest from impacted Unions, who will be more heavily regulated as a result of the introduction of the Code and the ABCC.

These legislative developments form two parts of the most significant industrial relations reform in Australia since the creation of the Fair Work Act 2009.

Penalty rates in Australia

A recent penalties case in Australia has considered whether to reduce the penalty rates payable by employers under a number of hospitality and retail modern awards. This case arose from a push by employers to reduce weekend penalty rates to make labour costs more affordable for retailers. Although a decision has not yet been handed down, this case could have a significant impact on the penalty rates payable by employers in Australia under the relevant awards and will have a significant impact on employers in the hospitality industry. It is expected that a decision will be handed down in late December 2016, or early in 2017.

KEY DEVELOPMENTS FOR 2016

Australian Government’s amendments to the Fair Work Act

On 3 December 2015, the Senate referred an inquiry into the provisions of the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 (the “Bill”) to the Education and Employment Legislation Committee for inquiry and issuing of a report by 4 February 2016.

The Bill amends the Fair Work Act 2009 in relation to:

The payment of annual leave upon termination of employment;

Taking or accruing leave while receiving workers’ compensation;

The requirements for flexibility terms in modern awards and enterprise agreements and individual flexibility arrangements made under those terms;

The transfer of business rules;

The right of entry framework; and

The Fair Work Commission not having to hold a conference or hearing to dismiss an unfair dismissal application.

WHS Act as a ‘national scheme’

Implementation of harmonised work, health and safety (“WHS”) legislation in Australia has not yet been finalised, however, investigations into ways in which the model laws could be improved have been ongoing since February 2004. As at January 2013, every jurisdiction apart from Victoria and Western Australia had introduced the model WHS legislation.

A comprehensive review of the model WHS laws was undertaken in 2016, which resulted in substantial amendments being made to the model WHS laws on 21 March 2016. At this stage, no jurisdiction has implemented any of these amendments.

Social Media Misuse

The dismissal of employees for alleged social media misuse is becoming increasingly common. There have been a number of decisions in the last few years in Australia dealing with this issue.

The cases have raised important questions about balancing an employer’s ability to control the social media activity of its employees against the rights of employees to engage in freedom of speech. The cases have tended to limit freedom of speech of the employee in situations where they have a public profile by virtue of their position, and their comments are not aligned with the interests of the employer. Principles derived from case law indicate that employers are likely to have good grounds to terminate when the comments are highly offensive, involve bullying or harassment, cause serious harm to the employer’s business and the obligations surrounding permissible use of social media in the workplace are clearly set out in a policy.

With thanks to Cilla Robinson of Clayton UTZ for her invaluable collaboration on this update

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